Washington Wednesday - Plotting changes at the Supreme Court

MARY REICHARD, HOST: It’s Wednesday, the 14th of April, 2021.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

First up: packing the Supreme Court.

President Biden on Friday fulfilled a campaign promise. He’s created a commission to study the issue of adding seats to the Supreme Court.

Many progressives want to add enough seats to wipe out the current conservative majority.

White House Press Secretary Jen Psaki said expanding the Supreme Court is just one of the issues the panel will look into.

PSAKI: They will also be looking at the court’s role in the constitutional system, the length of service and turnover of justice on the court justices on the court, the membership and size of the court, and the court case election rules and practices.

She also noted that the panel of 36 members is bipartisan, with some conservative members serving on the commission.

REICHARD: Here now to help us understand what this panel will look like, what it will do, and what it means is Ilya Shapiro. He is a vice president at the Cato Institute, a Libertarian think tank in Washington.

He’s also author of “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court.” Ilya, good morning!

ILYA SHAPIRO, GUEST: Good morning to you.

REICHARD: Might you give a little background first. When’s the last time we saw a White House talk about having more than 9 justices on the Supreme Court?

SHAPIRO: You really have to go back to FDR in 1937, having been reelected, overwhelmingly, and the democrats had super majorities in the house in the Senate. But FDR was frustrated that a lot of his New Deal programs were being rejected by the Supreme Court. And so he thought that the so-called old men needed some help. And he proposed to add six justices, one for every member of the court over 70-and-a-half years old, which would conveniently give him a majority in support of his policies. This was hugely unpopular, including from President Roosevelt’s own vice president John Nance Garner, and eventually it was so unpopular that the Democrats lost 80 seats in the House and eight in the senate at the midterms. But really, that’s the last time it was seriously discussed. The court has been at nine members since 1869, so 150 years.

REICHARD: Well, the White House says this panel is “bipartisan.” But that word doesn’t necessarily mean balanced. So what exactly does it mean in this case?

SHAPIRO: Yeah, it’s, it’s, there’s three remarkable things about this commission. First, it’s big, there are 36 members on this commission, you know, I’m sure we’re all familiar with work meetings, if you have 36 people around a table, there has to be a pretty big table, first of all, but even if they each talk for a few minutes, that’s already hours right there. So I don’t know how they’re gonna manage this thing.
The second thing is that, you’re right, it is skewed to the left. by my count, the ratio is about three-to-one, progressives to non progressives. And the republicans are all pretty moderate – the danger is that they are being used as tokens kind of as to give a patent of legitimacy to whatever this commission might come up with, although there’s been some criticism from left wing activists as well, that you don’t have a lot of the the major advocates for significant or radical reforms.

And also, this is the third major thing to note – that it’s a heavily academic commission that is there to retire judges, three leading progressive legal activists and the rest, like 31 people, are full time academics, which is a big, big thing. It could mean that whatever report is produced could be dismissed as too theoretical, too academic. You know, thank you very much, but, you know, nothing to do with the real world. And so there’s a lot of kind of speculation about what President Biden’s purpose with this is, a lot of these blue ribbon Commission’s over in our history have just kind of been used to kick the can down the road and hope that whenever a report comes out, it can just be quietly shelved.

REICHARD: Well, Ilya, other than the academic and political leanings of the commission members, what more do you know about the people on this panel?

SHAPIRO: Yeah, I mean, I personally know a lot of them. They are kind of the leading constitutional lights, Supreme Court watchers in academia, both on the left and some on the right, although again, they’re not too many of those who are not progressives. Not too many of them have called for packing the court. So it’s not the sort of commission you wish you would establish if you really wanted an endorsement of expanding the court. And in fact, its co-Chairman, Bob Bauer, who is the Biden campaign’s counsel, was a White House Council under President Obama himself is on the record as being against court packing, as are several other progressive members of the Commission. So we’ll see what they come up with. I mean, I’m skeptical that they’ll be able to come up with something that’s both non-controversial or bipartisan and feasible, because even something like term limits, which has fairly broad support that would take a constitutional amendment to enact.

REICHARD: Well, we heard some Washington-speak from the White House press secretary a few minutes ago. But let’s be very very clear. Ilya, in plain English, what exactly is this commission charged with doing?

SHAPIRO: Well, you can read it from the White House statement. The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. And that includes the court’s role in the constitutional system, the length of service and turnover of justices, the membership and size of the court, the courts case selection. So they’re really wanting to look at the court’s operation; does something need to be changed? The thing is really a parlor game among elite progressives more or less. Nobody really questions the court’s legitimacy outside of really the progressive elite in the sense that the court is a popular institution, much more popular than Congress or the presidency, pretty much any other government institution short of the military. And, you know, it’s unclear what’s broken, really, that needs to be fixed, other than the disappointment that a lot of folks on the left have that President Trump got to make three appointments?

REICHARD: And then just to clarify, this commission is only looking at the Supreme Court, correct? It’s not looking at adding more district court seats or anything like that?

SHAPIRO: Well, that’s that’s an open question, I suppose. It’s not charged with looking at the judiciary as a whole. I’m sure it wouldn’t be surprising if the commission to actually come up with something relatively less controversial, perhaps or feasible, would say that there need to be more district judges, you know, spread out over time. So it’s not just President Biden, appointing 100 new judges all at once or something like that. So you could see a recommendation like that. But the charge, the focus of the White House statement creating the commission is on the Supreme Court.

REICHARD: Well you’ve thought about these things for a long time now. What do you think will come of this?

SHAPIRO: A lot depends on what the Supreme Court itself does this June. Because if the purpose of creating a commission is to kick the can down the road until the time when the issue is less controversial, or fewer people are watching or what have you, then if the court this June doesn’t come out with too much that’s controversial or too many blockbusters, then the question is going to arise what what exactly do we need to reform? What’s wrong with it, it seems to be doing its job.

You know, the apocalypse was supposed to happen, according to a lot of progressives, once justice Kavanaugh was confirmed, and yet here we are, three years later, and that hasn’t exactly happened. But we’ll see what exactly the Supreme Court does. That’ll have an impact on it. And also, the timing, the charge of the commission is to come up with a report six months after its first hearing. Well, the first hearing hasn’t exactly been scheduled. If it’s scheduled for sometime this summer, then we’re looking at later the end of this year, beginning of next year. Who knows what the political discourse would look like at that time.

REICHARD: Anything else that you think the public ought to know about this commission?

SHAPIRO: In a certain sense, if the eventual report the commission comes up with is criticized both on the left and on the right, that might be a measure of some success. Often when you negotiate deals, if one side is completely happy, that means that must not be a very good deal. So if both sides get something or both sides are unhappy about something that could be a sense that the commission is really being realistic and, and not being as biased as its ideological ratio might set it out to be.

REICHARD: Ilya Shapiro is a vice president of the Cato Institute. Ilya, thanks so much!

SHAPIRO: Thank you.

(Photo/iStock)

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